Checklist for a Wireless Telecommunication Ordinance
A checklist about planning for wireless telecommunications.
- You begin with a purpose (generally good advice!). This is the section where you articulate your goals. The statement of purpose for your zoning ordinance in general probably encompasses the purposes of a telecommunications ordinance per se. Still, it is advisable to specify your purposes in the initial section. This purpose will recite the specific values that you want to foster in your community and the kinds of goals that have come out of task force investigations. For example, if your town is a population of dedicated bird watchers and you have reports that show the town on a migration path for certain endangered species, and the town wants specifically to protect its site on the wildlife corridor for safe passage of birds and observation of migration, then you should state that as one of your purposes.
- The next section will probably include definitions of certain terms. Be careful here because many terms have already been defined either in the Telecommunications Act (TCA) or at the state level in RSA Chapter 12-K. There is no need for you to repeat these definitions and no need to define words or terms (a) that are not used in the ordinance, or (b) are not capable of being misconstrued by a PWSF applicant who has never been to your town before filing an initial application. (Another word of caution: even though definitions often appear in the introductory part of the ordinance, they are usually contemplated first and written last, like any good introductory paragraph.)
- When you design your substantive regulations keep in mind a straight forward formula: the areas you have decided are the most desirable placements for siting PWSFs should be the easiest for an applicant to obtain approval. These uses may even be able to be granted without special review. Conversely, the placements and types of PWSFs which are the least desirable according to your ordinance's purposes should be the ones that are the hardest to obtain. (Note: the hardest to obtain is not the same as impossible; impossibility could be interpreted as violating competitively neutral guidelines of the TCA.) Make permission for siting in those areas most in need of shelter from PWSF impact (visually/esthetically, or because of secondary effects) very difficult to obtain (such as variances) for tall towers, e.g. (even if wall-mounted smaller units would be acceptable.)
- Once you decide where facilities may be located, it is a good idea to review all your zoning provisions to be sure that PWSFs (or certain types) are permissible accessory uses for a piece of property (See RSA 674:16,V). Some zoning ordinances are worded to prohibit more than one "primary" use of a property. If you do not fix that wording, you will be regulating at contrary purposes because you may very much WANT to allow a local church to site a PWSF on its steeple.
- What kinds of uses will have to obtain a variance in order to gain approval? This is an area where you must be especially careful in your drafting (see above comments on impossibility).
- You may want to include architectural considerations in your regulations governing any maintenance structure or accessory equipment housing that accompanies the principal PWSF structure.
- Consider what kinds of safety standards you need to include. For example, you may decide that PWSFs are functionally equivalent to the "attractive nuisance" characteristic of residential swimming pools that many communities require be fenced for protection of children and trespassers. If so, then your ordinance regulations need to make clear the type of fencing that will comply with your standards. Also consider the types of setbacks you will impose for any particular type of facility. One court has held that a local requirement of a setback sufficient to isolate a tall tower if it were to tip over was an appropriate method of ensuring public safety. Your setbacks might then be expressed in a certain distance, or perhaps as a ratio to the height of the proposed structure.
- Although you cannot regulate what sort of electromagnetic radiation emissions a PWSF will have, you can build into your regulations a schedule of regular inspections for compliance with FCC standards. You can also require a PWSF provider to agree, as a condition of approval, to guarantee access to the site for inspections. These inspections may be arranged as deemed necessary to monitor compliance with zoning regulations, as well as all the FCC administrative regulations to which the PWSF is subject as a condition of holding its operating license.
- "Collocation" is industry buzz for the simple concept that different providers can share structures. This may be a good thing for zoning and businesses alike. You may want to provide incentives for PWSFs to double up and make multiple use of any particular approved structure. That focus may cause you to consider offering an initial applicant/builder some kind of incentive to build a facility that will accommodate the next few companies seeking to establish service in your area. Notification arrangements have to be thought through or you risk losing potential fees and the opportunity to review such applications. This is one way that towns can minimize the number of these types of facilities without violating the TCA.
- Note that Chapter 267 of the laws of 2013 (SB101) significantly revised RSA 12-K to facilitate a streamlined application process for the collocation or modification of personal wireless service facilities. Local building code officials, governing bodies and local land use boards should review the text of the new law and any procedures they may have adopted to deal with telecommunications applications. It is possible that existing applications will have to be changed, time frames for review will change, existing fee structures will have to be changed, and land use board members will have to be trained about why they will no longer be involved in the review of these matters. For more information about these changes see Upgrades to Wireless Infrastructure, by Paul Sanderson, New Hampshire Town and City, January/February 2014 and Streamlined Application Process for the Collocation and Modification of Personal Wireless Service Facilities in NH, by Justin L. Pasay, Esq. DTC Lawyers, November 12, 2014.
- Your ordinance should also include provisions for removal of towers that become obsolete. This might entail some requirement that an applicant post a performance bond. No town wants to be left with structural dinosaurs. Though some people speculate that towers will disappear in a few years when technology moves "beyond" this stage, it seems more likely that these PWSFs will persist, but maybe in smaller or (we hope) unobtrusive formats. The growth of satellite transmission services has not lessened the great surge in the PWSF market at all.
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